Caught in the in-between: Why the legal definition of “refugee” is limiting and why we may not want to change it

The legal definition of a refugee as established by the 1951 Refugee Convention (pictured above) in the aftermath of World War II determines who receives humanitarian assistance from international organizations. Although it was intended for the legal definition to expand over time, multilaterals have been operating under the same working definition for nearly 70 years. Migrants who may not be facing personal persecution from their home governments but that may be facing other serious human rights deprivations – “survival migrants” – are not recognized under the current definition of refugees, leaving them bereft of international assistance from organizations like UNHCR, the multilateral organization guarding countries’ compliance with the legal document. The following explains why expanding the legal definition may not be helpful, and presents potential alternative approaches to making aid more inclusive.

Political incentives and motivations behind why governments and international organizations respond to incoming populations should say a lot about why they react the way they do. From this information we can vilify agencies for their disengagement in certain crises or we can use this information to better understand the key issues facing humanitarian and development agencies in mobilizing resources for migrant populations. For instance, it may be important to note the incredible coordination, effort, and resources necessary to maintain a refugee camp, which is most explicitly expressed and understood from the documentary, After Spring. The documentary follows aid workers fighting to keep the Zaatari refugee camp, the largest refugee camp for Syrian refugees, running. There is only one social worker tending to the needs of thousands of families, and families remain on endless waitlists for essential health-related services. Also, due to the high cost of semi-permanent shelters, many families still reside in tents (Ching and Martinez, 2016). Taking into consideration the operational costs of maintaining camps may explain why changing the legal definition of a refugee may be challenging practically and even why it may not be helpful.

Changing the legal definition of a refugee may also not be helpful because being considered a refugee may not always be in the best interest of some migrants, especially for those who want to maintain the right to return, as expressed in the article, When “Humanitarian” Becomes “Development”: The Politics of International Aid in Syria’s Palestinian Refugee Camps. For example, a mural painted on the side of a house in Ein el Tal, a Palestinian refugee camp in Northern Syria, depicts controversies over UNRWA’s recent attempt to emphasize “development” in Palestinian refugee camps (Gabiam, 2012, p. 96). While “refugee” status should not be taken away from these Palestinians while they remain displaced, it is important to understand the perceived permanence of that status, and how that can be conflated by “development” (i.e. more permanent structures) in humanitarian situations. While refugees may be protected by humanitarian organizations, perceptions regarding their rights and personal freedoms under this status have left them feeling as though their rights are restricted.

The problem is not the definition of a refugee, but that the legal protections migrants receive hinges on the definition of a refugee. It is troubling that international organizations and nation states so readily utilize and rely upon the definition of a refugee as established by the 1951 Refugee Convention when our understanding of why the rest of the world (everyone else) migrates is still so limited, and yet too confounded by outdated and unrealistic neoclassical economic theories of why people migrate that cannot explain the intricacies and nuances behind these heavily personal decisions. If multilateral institutions suddenly decided to get together and update the current definition and legal parameters of the term “refugee” to meet the present needs of migrants, then either political red-tape and bureaucracy needs to improve at the international level to better respond to demands, or we need to dismantle the current framings of migration altogether. The troubling common denominator between both of these alternatives is that neither are highly likely. There is little to no political will to create a new working definition by international agencies (and perhaps for good reason) as evidenced by the fact that agencies have been working with the same definition for nearly 70 years.

Some countries have adopted additional national policies that expand upon the international definition and legal framework, such as the 1969 OAU Refugee Convention in Africa, which expanded the definition of the term “refugee” and introduced non-refoulement. Although well intended, these policies are selectively enforced and rarely invoked into practice, as examined in the book, Survival Migration. The book studies applications of non-refoulement in Kenya, Tanzania, and Angola; however, the most successful case of applying non-refoulement policy was in South Africa, though it had many shortcomings. Many Zimbabweans who fled existential threats received protection as refugees via asylum permits through South Africa’s asylum legislation. By March 2011, however, South Africa imposed stringent transit permits and restricted material support for Zimbabwean migrants. Therefore, even in a successful case, the implementation of non-refoulement policy is short-lived (Betts, 2013).

The current framework of migration needs to be dismantled, but in actionable steps. First we must identify which alternative frameworks of understanding will disrupt dominant discourses and work with those. Perhaps the most expedient and effective way to care about migration now would be through energy strategies, and through changing political discourse around both climate change and migration, particularly their interrelationship. Changing political discourse to create more space for policies that are more institutionally responsive to migration and climate change issues would be extremely challenging. So instead of targeting every politician and every head of state, it may be more important and helpful to understand whether the numbers of those who can be swayed are large enough to change policy (University of Limerick, Ireland, 2016). This shift in political discourse and policy priorities should capture migrants, such as survival migrants, who, on a spectrum between refugees and economic migrants, fall somewhere in between.